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Wilharm v. Employment Appeal Board

Court of Appeals of Iowa

July 6, 2017

DANIEL W. WILHARM, Plaintiff-Appellant,
v.
EMPLOYMENT APPEAL BOARD and IOWA STEEL FABRICATION, L.L.C., Defendants-Appellees.

         Appeal from the Iowa District Court for Polk County, David May, Judge.

         Daniel Wilharm appeals an Employment Appeal Board decision disqualifying him from receipt of unemployment benefits.

          John S. Allen and Lois Cox of the University of Iowa College of Law and Andrew J. Workman, Nathan Converse, Kaitlin Boettcher, and Bradyn Fairclough, Student Legal Interns, Iowa City, for appellant.

          Richard Autry of the Employment Appeal Board, Des Moines, for appellees.

          Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         Daniel Wilharm appeals an Employment Appeal Board decision disqualifying him from receipt of unemployment benefits.

         I. Background Facts and Proceedings

         The Board found the following facts. Wilharm drove a truck for Iowa Steel Fabrication. His primary duty was to deliver parts. Deliveries were "time-sensitive." Wilharm "had a tardiness issue" for which he was issued two warnings.

         Shortly after these warnings were given, Iowa Steel sent Wilharm to deliver goods to a contractor three-and-a-half hours away. Wilharm left at 7:00 a.m. At about 4:00 p.m., the contractor notified Iowa Steel that Wilharm did not arrive until after 3:30 p.m. and "jumped onto and ran the contractor's forklift, which was against both the Employer's and contractor's safety code." When questioned about his whereabouts, Wilharm told Iowa Steel he "took a nap." Following this incident, Wilharm received warnings for being late and for "purchasing food with a gas card."

         The morning after this napping incident, Iowa Steel gave Wilharm a load to deliver to Kansas City. He was instructed to then pick up a load in Omaha. The entire trip should have taken "seven hours and forty minutes, which included loading and unloading." At about 3:00 p.m., Wilharm called Iowa Steel and said he was just leaving Kansas City for Omaha. He did not arrive in Omaha until 5:00 p.m., two hours after the plant closed. Iowa Steel asked about the delay. Wilharm said he started the trip late because he had to go home and look for his wallet. Iowa Steel terminated Wilharm the next day.

         Wilharm made a claim for unemployment insurance benefits, which was denied. Wilharm filed an agency appeal. Following an evidentiary hearing, an administrative law judge reversed the denial. Iowa Steel appealed the reversal to the Employment Appeal Board. The Board reversed the administrative law judge's decision after concluding Wilharm "was discharged for disqualifying misconduct." The Board provided the following reasoning:

[T]he record solidly supports that Mr. Wilharm's behavior was a blatant disregard for the rights and obligations he owed to the Employer. His excuse that he took a nap on the 6th does not absolve his responsibility to make timely deliveries. Any reasonable person should know that taking naps on company time is not acceptable behavior and an employee needn't have a warning to know that. The Claimant failed to display even a modicum of concern for the Employer's interests when he failed to contact the Employer on the 7th when he knew he would be late because he had to return home to retrieve his wallet. In considering these final incidents, along with his verbal and written warnings, we see that the Claimant continued his pattern of failing to comply with company policy.

         Wilharm petitioned for judicial review of the Board's decision. The district court affirmed the ...


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